An uncontested divorce (divorce by agreement) is a scenario where the spouses separate but are able to agree on child custody and property settlement. Today, we take a detailed look at how to achieve an uncontested divorce and what to prepare for in court proceedings.
TheCivil Code provides for three basic conditions for an uncontested divorce to take place:
The first condition is that the marriage has lasted at least 1 year on the date of the commencement of divorce proceedings by agreement and the spouses have not lived together for more than 6 months. The law thus encourages us not to file for divorce in court too hastily after every major quarrel. Therefore, a longer period of separation is required.
The lawyer advises: How to interpret the term not living?
What “not living” means is determined by the Civil Code. It states that ‘spouses do not live together unless they form a conjugal or family community, whether or not they have or maintain a family household, where at least one of the spouses is manifestly unwilling to resume the conjugal community‘.
This means that the spouses may still live together, but they do not treat each other as spouses, do not share their joys, worries and intimacies, and do not wish to resume such conjugal cohabitation.
“However, it is to some extent a subjective matter and in court the condition is in principle proved by a declaration of the spouses.”
Poorly drafted agreements can prolong a divorce
We will draw up or check all the necessary agreementsfor you. We can do it online in as little as 48 hours, but we will also support you in court if necessary.
The second condition is an agreement between the spouses on where and with whom their joint children under 18 will continue to live. Such an agreement should specify whether the children will be in joint custody, alternate custody or in the custody of one of the parents and how contact with the other parent will be arranged.
Tip: An essential part of the modification of the relationship to minor children is child support.
Even if the children will be staying with both parents for roughly the same amount of time and both have roughly the same income, it is appropriate to state in the agreement that the parents have agreed not to pay maintenance. In the event that the relationship deteriorates in the future, such a sentence may clear up some misunderstandings. The child custody agreement must then be approved by the court. Just as in a contested divorce, an uncontested divorce will not avoid two court proceedings. However, if there is an agreement on the table, a trial on the children will be straightforward and should only take one sitting.
As a third condition, the Civil Code provides that the spouses agree to regulate their property, their housing and, if applicable, their maintenance for the period after the divorce. In most cases, such an agreement mainly involves the division of the matrimonial property. In the agreement, the spouses will, for example, determine who gets the shared flat or car, how much they will pay to the other spouse, where they will both continue to live and whether one of them will be entitled to maintenance and how much. It is also possible to modify who stays in the rented apartment, by when the other spouse is obliged to leave the apartment and whether he or she receives certain compensation.
The entire property agreement must be in writing and contain the certified signatures of both spouses. It can also be concluded in the form of a notarial deed and include a “direct enforceability clause“, which is a useful tool when one spouse has to pay a larger sum of money to the other. The direct enforceability clause then makes it easier to recover the amount in question.
If the spouses have fulfilled all three conditions and have both the property agreement and the court’s judgment approving the children agreement in hand, they can proceed with the divorce process itself. The divorce will usually be decided by the court where the spouses last lived together. This will require the filing of a petition for divorce (either by one or both spouses together), the production of the necessary documents (in addition to the agreements made, this will include the marriage certificate) and the payment of a court fee.
Tip: Make sure you don’t miss a single document needed for the divorce.
The court will then order an oral hearing. Even if it is an uncontested divorce, the court will usually want the spouses to attend the hearing in person and at least informally ask their opinion. However, unlike a contested divorce, the court does not need to find out the causes of the breakdown of the marriage, so it does not subject the spouses to any unpleasant questioning. The whole procedure should not take more than one sitting. Divorce is always one of life’s most challenging chapters and the end of a relationship is itself a major blow for many.
In this article, we have shown a way to deal with the situation effectively from a legal perspective. However, the emotional and legal sides are usually linked and a good divorce is usually the start for a good post-divorce relationship. That is why we are prepared to advise you on your specific issues, draft quality divorce agreements, and even represent you in court.
Tip: Dealing with a surname change after divorce? Learn how to do it.
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